Thomson v. Beuchel

Filed 7/31/07 Thomson v. Beuchel CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Appeal from a judgment of the Superior Court of the County of Los Angeles, Melvin D. Sandvig, Judge. Reversed.

George W. Coleman for Plaintiffs and Appellants.

Morris Polich & Purdy LLP, Richard H. Nakamura Jr., Dean A. Olson and Thomas H. Schelly for Defendant and Respondent.

_______________________________

Travis and Kelly Thomsons home was damaged by mudslides when heavy rainfall caused slope failure on the hill behind and to the side of their property. The Thomsons sued the owners of two adjacent properties alleging causes of action for negligence, nuisance, trespass and injunctive relief. After the owner of the parcel located on the hillside above the Thomsons settled, the trial court granted the remaining adjacent property owners motion for summary judgment, concluding the Thomsons had not offered admissible evidence sufficient to meet their burden of showing the existence of a triable issue of material fact. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Thomsons purchased two lots in the Val Verde area of northern Los Angeles County in 1999. Their home is situated on the front half of the westernmost lot. As with other lots on the street, the rear third of the Thomsons property slopes upward about 30 to 40 feet at approximately a 45-degree angle. A retaining wall is located about 10 feet up the slope behind the house. Both of the Thomsons testified at their depositions the house and retaining wall appeared to be in good condition at the time they purchased the property, an assessment shared by their home inspector. Neither of them considered the possibility of slope failure, and they never conducted any geological testing of the slope before it failed.

Respondent Joan Beuchel[1]owns several lots in the surrounding neighborhood, including the two lots directly to the west of the Thomsons, which she purchased in 1986. The lots adjacent to the Thomsons property are unimproved although the forward portion of each lot has been graded. Like the Thomsons lots, the rear of each lot slopes upward at a steep angle. Until 1993 Beuchel lived in Van Nuys and, although she never developed the property, saw her lots every three to four months. During that time, she hired someone to remove weeds each year but saw no change to the surface condition of her property. In 1993 Beuchel moved to Arizona. She continued to hire someone to remove weeds each year and drove to California once or twice a year to see her property. Beuchel acknowledges she never hired anyone to inspect the property or conduct any geological survey, nor was she ever advised to clear any loose soil material from the hillside.

On the morning of January 9, 2005, after several days of heavy rain, the hill at the rear of the Thomson and Beuchel lots suffered a series of mudslides, which continued for the next few days. The first slide came toward the Thomsons house from the west at an angle. Mud and water pushed against the back corner of the Thomsons house but did not enter the residence. However, a subsequent slide broke through the western part of the retaining wall and entered the house through the dining room window three feet above ground level. The floor of the Thomsons dining room was covered in mud as deep as six inches in some places, and the entire first floor of the home was flooded with an inch or two of water. A couple of days later inspectors from the County of Los Angeles Department of Building and Safety yellow-tagged the Thomsons home, restricting them from occupying damaged portions of the house.

A week or two later, Travis Thomson asked Beuchel if he could enter her property to see what could be done to prevent further slides. Beuchel agreed, provided Thomson sign a waiver of all liability for mudslide damage. Thomson refused to agree to what he considered an unreasonable condition and entered Beuchels property without signing the waiver. Using a compact excavator, he moved the mud that had flowed onto his property from Beuchels property back to Beuchels property and built a five-foot berm to prevent further slides onto his property. Thomson then hired a geotechnical consulting firm to investigate the slopes soil condition. The investigation was conducted by Gary Masterson, a geotechnical engineer. During the course of his investigation, Masterson climbed the hillside on several occasions and dug seven test pits, some of which were excavated (and later filled) on Beuchels property, to assist in his analysis. He set forth his detailed findings and outlined recommendations for prevention of further damage to the Thomsons property in a 68-page report (the Masterson Report).

In April 2005 the Thomsons filed a complaint, and in October 2005 an amended complaint, alleging causes of action against Beuchel and Alan Louie and Alvin J. Snaper, the owners of the adjacent hilltop parcel, for negligence, nuisance and trespass and for injunctive relief. After Louie and Snaper settled with the Thomsons, Beuchel moved for summary judgment, contending she had acted reasonably in managing her property and could not be held liable for damages resulting from the natural, unaltered flow of surface waters from her property. In support of the motion, Beuchel attached the declaration of a geologist asserting, without any analysis or underlying factual detail, [Beuchels] Property appears to have [been] maintained in a reasonable manner with respect to Plaintiffs property.

With their papers in opposition to the motion for summary judgment, the Thomsons included a declaration from Masterson summarizing his conclusions and submitted his report for the courts review. In his declaration Masterson opined the hillside on Beuchels property contained two uphill reentrant canyons or troughs, one of which led to the property line between the Beuchel and Thomson properties, through which slope wash, debris and soil had become saturated and had washed out onto the Thomsons property during the January 2005 rains. He identified a 1986 geological study of the area warning that debris flows are common for slopes like the one on Beuchels property. Based on his measurements at the site, Masterson concluded the surficial stability of the slope fell below the standard for minimum stability for safety for such a slope, thus creating a potential for further erosion and surficial soil failures.

Beuchel objected to the admissibility of the Masterson Report and supporting declaration on the grounds of relevancy, because Masterson had said nothing about Beuchels negligence, and illegality, because in conducting his investigation Masterson had trespassed on Beuchels land. After hearing oral argument the trial court sustained Beuchels evidentiary objections, including the objections to Mastersons report and declaration, and granted the motion on the ground the Thomsons had failed to show the existence of a disputed material fact as to the reasonableness of Beuchels conduct.

CONTENTIONS

The Thomsons contend the trial court misapplied the law governing a property owners liability for the natural conditions on his or her property and improperly excluded their experts declaration and the accompanying Masterson Report, each of which raised a triable issue of material fact regarding the reasonableness of Beuchels management of her property.

DISCUSSION

1. Standard of Review on SummaryJudgment

We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Code Civ. Proc., 437c, subd. (c).)

When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiffs cause of action. Alternatively, the defendant may present evidence to show[] that one or more elements of the cause of action . . . cannot be established by the plaintiff. (Code Civ. Proc., 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) [T]he defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence. [Citation.] (Kahn v. East SideUnionHigh School Dist. (2003) 31 Cal.4th 990, 1003.) Once the defendants initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action or defense. (Code Civ. Proc., 437c, subd. (p)(2); Aguilar, at p. 849.)

2. The Trial Court Correctly Applied a Rule of Reason to the Conduct of Beuchel in Managing Her Property

In Sprecher v. Adamson Companies (1981) 30 Cal.3d 358 (Sprecher), the Supreme Court dispensed with the common law rule immunizing landowners from liability for harm caused by natural conditions[2] of their land to persons outside the premises in favor of a rule applying traditional principles of negligence. Ruling that summary judgment had been improperly granted in a case much like this one where heavy rains triggered a landslide that damaged the plaintiffs land, the Court rejected the common law distinction between natural and artificial conditions of land. As the Court explained, Whatever the rule may once have been, it is now clear that a duty to exercise due care can arise out of possession alone. (Id. at p. 367.) It must [] be emphasized that the liability imposed is for negligence. The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessors degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendants conduct. (Id. at p. 372.)

As she did in the trial court, on appeal Beuchel argues -- notwithstanding Sprecher, supra, 30 Cal.3d 358 -- this case is controlled by Keys v. Romley (1966) 64 Cal.2d 396 (Keys) and its progeny, a separate line of authority governing landowners liability with respect to surface water,[3]which relieves her of any duty to protect the Thomsons from the consequences of the unaltered natural flow of surface water across her land.[4]Keys articulated a rule of reasonableness derived from tort principles to be applied in apportioning liability resulting from a landowners alteration of the natural flow of surface waters (what the Court referred to as a modified civil law rule). (Keys, at pp. 407-408.) It is . . . incumbent upon every person to take reasonable care in using his property to avoid injury to adjacent property through the flow of surface waters. Failure to exercise reasonable care may result in liability by an upper to a lower landowner. It is equally the duty of any person threatened with injury to his property by the flow of surface waters to take reasonable precautions to avoid or reduce any actual or potential injury. [] If the actions of both the upper and lower landowners are reasonable, necessary, and generally in accord with the foregoing, then the injury must necessarily be borne by the upper landowner who changes a natural system of drainage . . . . (Id. at p. 409.)

Although the tort principles underlying the result in Keys, supra, 64 Cal.2d 396 are consistent with those adopted in Sprecher, supra, 30 Cal.3d 358, Beuchel contends the unstated prerequisite for imposition of any liability on a landowner for damage caused by the discharge of surface waters under Keys is conduct by the landowner that alters the natural flow of the surface waters; in other words, absent some interference by the landowner with the natural flow of surface waters, liability cannot be imposed under the modified civil rule announced in Keys. (See, e.g., Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 441-442 [After reviewing the development of California water law, Keys adopted a reasonable use rule with respect to the flow of surface waters from a dominant or upper landowner. This rule acknowledged Californias application of the civil law rule, under which owners of a dominant estate could, without liability, discharge surface water as it naturally flowed, but were required to act reasonably in using their property to avoid harming adjacent property], italics added.) Because Beuchel did not change the natural system of drainage on her property or do anything else to alter the flow of rainwater that led to the mudslides damaging the Thomsons home, she argues the trial court properly granted her motion for summary judgment without even reaching the issue of reasonableness.

We need not decide in this case whether, under all circumstances, a landowner who unreasonably fails to act to protect an adjoining property owner from the consequences of the natural flow of surface water across his or her property is absolved from liability. (See, e.g., Gdowski v. Louie (2000) 84 Cal.App.4th 1395, 1405 [applying Keys rule of reasonableness to claim upper landowners landscaping altered natural flow of surface waters causing flooding of neighbors home; significant point of Keys and its progeny is that these cases set forth the principles to be used when a defendants actions alter the natural flow of water onto the land of another, not that these cases set forth the only fact patterns in which a defendant can be held liable].) The damage to the Thomsons home, like the damage in Sprecher, resulted from a landslide caused by heavy rains, not just flooding resulting from the natural draining of surface waters. (Cf. Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 759 [rain and landslide are two distinct perils].) The issue of Beuchels liability thus relates not to her inaction with regard to the natural flow of surface water but to her failure to ensure the stability of the slope on her property. (See Sprecher, supra, 30 Cal.3d at p. 373 [trier of fact entitled to consider availability of effective measures for control of slide].) The trial court correctly found Beuchel had a duty to exercise due care in the management of her property (id. at p. 367) and properly concluded the propriety of summary judgment turned on the issue of reasonableness (breach of duty).

3. The Trial Court Erred in Granting Summary Judgment Because Beuchel Failed To Prove Her Negligence Could Not Be Established as a Matter of Law

Under the governing principles of Sprecher, supra, 30 Cal.3d at page 372, at a trial on their action for negligence, the Thomsons would have to present evidence Beuchel failed to act as a reasonable person in the management of her property. On summary judgment, however, it is Beuchels initial burden to present sufficient evidence to preclude the trier of fact from finding she had acted unreasonably or else establish the Thomsons do not possess and cannot reasonably obtain evidence to prove she acted negligently. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853-854.) The defendant does not meet her burden on summary judgment simply by pointing out the absence of evidence to support an element of the plaintiffs cause of action [citation] . . . . (Id. at p. 855, fn. 23; see Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1002-1003.) Absent such proof, the burden on summary judgment does not shift to the Thomsons to demonstrate a triable issue of material fact on the question of breach.

The concept of reasonableness is an inherently factual inquiry. (See, e.g., Sprecher, supra, 30 Cal.4th at p. 373 [reversing summary judgment where evidence does not conclusively establish that no rational inference of negligence can be drawn under the circumstances of this case]; Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838 [breach of duty generally presents a factual question preventing summary judgment].) As Sprecher directs, the question of reasonableness in this case requires examination of myriad factors, including, at a minimum, [t]he likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessors degree of control over the risk-creating condition. (Sprecher, at p. 372.)

Beuchels evidence on the issue of the reasonable management of her property consisted entirely of her experts conclusory declaration that she had maintained the property in a reasonable manner with respect to Plaintiffs property. The expert, Richard S. Hazen, recited he had inspected Beuchels property on June 30, 2006 to observe the existing site condition in light of the Thomsons alleged damages resulting from slope failures. The declaration provides no details of the inspection and does not identify any tests Hazen performed (or if any tests were performed), nor does it indicate the basis on which Hazen concluded Beuchels failure to take corrective action with respect to the stability of the slope on her property was reasonable. In Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524, we held a similar declaration from the defendants expert in support of the defendants motion for summary judgment was insufficient: [A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment. (Accord, Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1009-1010.)[5]

Moreover, even if Hazens opinion, if left unrebutted, would compel judgment in Beuchels favor ‑‑ a somewhat questionable proposition since Beuchels admission she never inspected her property might well support an inference of negligence ‑‑ nothing in his declaration conclusively negates the element of reasonableness, an often impossibly high standard of proof. (See, e.g., Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 373 (conc. opn. of Chin, J.).) Similarly, although Beuchel argues the trial court properly excluded the Thomsons expert declaration and the Masterson Report, an issue we need not decide,[6]Beuchel presented no evidence the Thomsons did not possess or could not reasonably obtain expert testimony (consistent with all normal civil discovery rules, to the extent that is required) that Beuchels negligence in failing to ensure the stability of her property was a significant factor in allowing the mudslides that damaged the Thomsons house. Accordingly, under the stringent standard for determining a motion for summary judgment set forth in Aguilar, Beuchel failed to present sufficient evidence to shift the burden to the Thomsons. Summary judgment should have been denied without any consideration whether the Thomsons evidence established a triable issue of material fact.

4. Because the Thomsons Additional Claims Are Grounded in Negligence, the Motion Fails for the Same Reasons

The Thomsons asserted three additional causes of action alleging nuisance, trespass and injunctive relief under Civil Code section 3420.[7] The claims for nuisance and trespass are grounded on Beuchels alleged negligence. (See Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 101 [applying Sprecher to conclude where ones negligence concerning a natural condition of his land injuriously invades anothers right to the use and enjoyment of his property, nuisance liability may arise]; Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233 (liability for trespass will not be imposed unless the trespass is intentional, the result of recklessness, negligence, or the result of an extra hazardous activity, italics added].) In light of our conclusion Beuchel failed to prove her negligence could not be established as a matter of law, reversal of the order granting summary judgment on the Thomsons remaining claims is also required.

DISPOSITION

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. The Thomsons are to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

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[1] Joan Beuchel was sued in her individual capacity as well as in her capacity as trustee of the Joan Beuchel Revocable Living Trust. The trust is the record owner of the property.

[2] The term [n]atural condition of the land is used to indicate that the condition of land has not been changed by any act of a human being . . . . It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them. (Sprecher, supra, 30 Cal.3d at p. 362, fn. 3 [citing Rest.2d Torts,  363, com. b].)

[3] In a footnote the Sprecher Court distinguishes the line of cases following Keys as a separate body of law not considered here. (Sprecher, supra, 30 Cal.3d at p. 364, fn. 5.)

[4] Water diffused over the surface of land . . . and resulting from rain . . . is known as surface water. It is thus distinguishable from water flowing in a fixed channel [or]  . . . identifiable body, such as a river or lake. (Keys, supra, 64 Cal.2d at p. 400.)

[5]  As a general rule, on appeal from an order granting summary judgment the reviewing court may consider any evidence offered by the parties in the absence of a ruling in the trial court properly sustaining an objection. Nonetheless, it is our responsibility in reviewing an order granting summary judgment to independently determine the effect of the evidence submitted. (Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co., supra, 136 Cal.App.4th at p. 1010, fn. 4.) Accordingly, although we accept the Hazen declaration as part of the record, we cannot disregard its deficiencies as an expert opinion in determining whether summary judgment was properly granted. (Ibid.)

[6] Masterson opined that the flooding and mudflow into the Thomsons home resulted from loose material on the hillsides above and to the north and west of their property (that is, from Beuchels property and the property of Louie and Snaper) and that removal of all such loose material on the hillsides is necessary to prevent a recurrence of the mudslide damage to the Thomsons house. Although we do not reach the issue of the exclusion of the Masterson declaration and Masterson Report, it is difficult to understand why those opinions are not relevant to the issue of Beuchels alleged negligence in failing to take any preventive or corrective action with respect to the slope on her property. As to the issue of illegality, our colleagues in Division One expressly limited the scope of their decision in Pullin v. Superior Court (2000) 81 Cal.App.4th 1161, the authority relied upon by Beuchel in the trial court, to the proposition that evidence is not made inadmissible by the simple fact that it is obtained by investigation rather than by way of formal discovery. (Id. at p. 1165.) That is, if one partys examination of the opposing partys property outside the procedural rules set forth in the Discovery Act was conducted in a lawful fashion, as it was in Pullin, it may not be excluded from evidence. (Id. at pp. 1164-65.) Beuchels argument this holding necessarily also means the evidence must be excluded if the examination was not lawful or properly authorized ‑‑ the fallacy known in formal logic as denying the antecedent ‑‑ is not supported by Justice Vogels opinion.

[7] The Thomsons assert a separate cause of action for injunctive relief to prevent further injury to their property. This so-called cause of action simply requests an equitable remedy for the tortious conduct alleged elsewhere in the complaint. (See Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168 [[i]njunctive relief is a remedy and not, in itself, a cause of action].) Accordingly, we do not separately address this claim.